In this interview, Redrawing Boundaries of International Law theme issue editors Yuan Yi Zhu and Tuuli-Anna Huikuri had the chance to present a set of topical questions to Ms Ruma Mandal, the Head of International Law Programme at Chatham House. The conversation included recent developments in the policy of international law regarding refugees, insights into the sociology of the legal profession, as well as Ms Mandal’s personal reflections of her career.
Prior to her position at Chatham House, Ms Mandal worked on public international law issues with the UK government as a legal adviser in the Foreign and Commonwealth Office. She also worked with the UN High Commissioner for Refugees, where she drafted a series of guidelines on critical areas of international law regarding protection of refugees, including the question of exclusion from refugee status and the protection of stateless persons. In addition, she has been involved in litigation in the European Court of Human Rights, negotiating international instruments and setting up monitoring initiatives.
STAIR: In the light of the recent Syrian refugee crisis and the influx of refugees coming into Europe there has been an increased public interest towards the international law on refugees. In your opinion, is there something unique about the current refugee crisis in comparison to the past from a legal perspective?
Ruma Mandal: I think in one of the reasons the recent refugee crisis is dominating policy discussions and has received great public attention is precisely the idea that it is somehow unique. Firstly, I don't necessarily think it's unique as a phenomenon. However, this is the first time we have seen relatively large numbers of refugees arriving from outside Europe, which largely explains the public attention. Of course, waves of refugees have been observed in Europe in the past: the Balkans crisis resulted in large numbers of refugees, and one can go much further back to the second world war to find more examples. But these were essentially European refugee flows. I therefore think that now that Europe has to face a much bigger flow from outside of Europe it has created much more political tension.
From the legal side, I don't see any particularly new legal issues. Many people have questioned whether international refugee law is effective given the perception that the movement of people is much larger now, and in the European context, a lot of governments have not been so supportive of the basic principles of refugee law. But essentially, I don't think it raises new questions about the content of refugee law. It just raises questions about whether the traditional leadership in that area is ebbing away.
STAIR: Do you think that the refugee issue is now more politicized than it has been in the past?
RM: Yes, absolutely. If one looks at the refugee convention, the whole concept of a refugee is not political, it is humanitarian. 20 years ago, as I started working on refugee issues in the European context, they were dealt with by the Ministry of Interior, equivalent of the Home Office. It has now become a foreign policy issue as well. On a global level, the way in which such issues are dealt with has moved from immigration, home affairs, and humanitarian conversation to serious realpolitik. That is a significant difference, which is not entirely related to the issue of refugees itself. It has more to do with broader global politics of mobility, borders, and security.
STAIR: The 1951 Refugee Convention is the backbone of international refugee law, and recently there have been calls to overhaul this regime, argument being that it is no longer fit for purpose because of the very different political context and large numbers of refugees. Other people have also argued that the Convention does not effectively split the burden between recipient states. Do you think that the 1951 Refugee Convention is still fit for purpose, and what changes if any would you like to see to be made to it?
RM: As you say, there are lots of people who advocate the convention being renegotiated. First point would be that reshaping the Convention to be more effective is not really feasible politically. If renegotiation was to be attempted, the result would likely be an even more narrow and probably an even less fit-for-purpose treaty. This is because of the current political attitudes within states towards refugees, and broader issues of human mobility.
In its current form, the Convention in my opinion is still applicable: it outlines that if you have to cross borders out of the fear for your life, or because of severe human rights violations, another state needs to protect you physically and legally, since you no longer have a parent state that you can rely on. I think this fundamental provision of the convention – which is now arguably also part of international customary law – is still relevant. The problem is precisely that the Convention never dealt with how to share responsibility for the movement of refugees. It essentially states that another state will have to look after a refugee, but it does not present a mechanism for addressing the huge inequality in dealing with what we might call a public good.
In Europe, we are very exercised about this rise in the number of refugees coming here from outside the European continent, but when the crisis is put in a global context, we should be aware that it is a small portion of the number of refugees worldwide. The vast majority of them are in developing countries, who have even less ability to look after them. The issue about fir-for-purpose does not really concern the legal regime per se, as the Convention provides flexibility to states to help each other out. Overall, I don't think the inability to deal with the refugee crisis is a legal failure, it is a political failure. Indeed, states have become more creative over the years to use tools like financial aid to countries hosting refugees. There are all sorts of options to share responsibility so that no one state feels overwhelmed, perhaps because of the accident of its geography.
STAIR: While some countries especially in Western Europe take a lot of refugees, other countries also outside the Western world might be thought to have the responsibility to help because of their size. For example, China officially took some 47 refugees last year. Do you think there is any evidence that these countries are becoming more willing politically to accept responsibility over refugees, or do you remain pessimistic?
RM: I am relatively optimistic with regards to more countries being prepared to take responsibility through financing. In particular regarding the Syria crisis, countries who have not traditionally been big donors, for example, to the UNHCR have come forwards with financial contributions. However, this has to be put in context - the overall picture is bleak for humanitarian funding generally, not just for refugees. It is enormously underfunded. For example, the Syria Conference last week in Brussels failed to raise the targets for critical humanitarian assistance to Syrian refugees in the region. However, within that rather bleak picture there are these positive dynamics of what you might call emerging donors.
Financing is of course only one part of the responsibility equation. In terms of providing access to refugees, or helping another host state through resettlement initiatives, there are some positive developments, for example emerging resettlement countries and community-driven private sponsorship initiatives. With regard to the former, countries like Brazil are now offering resettlement places for example to Syrians coming from Jordan and Lebanon. But overall, there are many states which are relatively well-off economically, and which have small numbers of refugees, who could be argued should do a lot more. The Global Compact for Refugees currently under discussion, although not a legal instrument, will try to create a stronger commitment to responsibility sharing. A number of commentators have presented some creative ideas about how state contributions can be measured, and to form a clear indicator of which states are doing well to create incentives for states. Longer term there is potential for a lot more countries to do more to create effectiveness and predictability in refugee emergency responses.
In addition, there is a lot of policy research at the moment on how one can turn a refugee situation into an economic opportunity, for both the refugees and the host country. It stems from the recognition that refugee situations last longer than they used to: 40 years ago, after a refugee emergency many people were able to go home after a couple of years after the conflict resolves. Now we have people in refugee situation for over 20 years, which is why the emergency crisis approach is no longer appropriate, and economics of refugee crises also need to be considered.
STAIR: The discourse in the West has become focused on the distinction between political refugees, which are considered to be legitimate refugees, and economic immigrants, who are generally described as taking advantage of the refugee regime. Do think that this kind of distinction has any force legally or morally? Is it useful?
RM: The convention quite clearly defines who a refugee is, and the definition is based on those who have lost fundamental human rights protection in their home country. The convention therefore aims to protect the freedom of those whose lives are at risk, but not people who are moving for economic reasons, however understandable those may be. There's been lots of debate about whether that's still morally defensible, or even whether a broader legal interpretation could be possible. There certainly are cases where you see that someone may have been forced to flee because of persecution on the part of the state which would lead some people to be really economically deprived. This may result for example from a purposeful political strategy of famine. But the convention is not aimed at dealing with people moving because they seek better livelihood opportunities.
However, there is a real issue about how states cooperate to deal with the issue of growing human mobility. There is no equivalent to the Refugee Convention for migration, because states have wished to retain their sovereignty in this area. The Convention is the one area about cross-border movement where states were prepared to give up a degree of sovereignty because of the exceptional nature of the cause of movement. Many are advocating that the Refugee Convention could either be broadened, or we could have a parallel convention, but the politics at present do not make it feasible. A non-legal instrument, the Global Compact on Migration, is currently being negotiated but it is unlikely this will involve significant concessions on state control over their borders. The process is however trying to get states to think more strategically about how they approach migration, and to reconsider the negative, securitised approach to human mobility. That securitised approach drives many people who have no other routes to the global North for economic reasons to try to enter using the refugee route. This is neither good for them, refugees, nor the countries of destination.
STAIR: International law continues to be practiced by a handful of lawyers and arbitrators. Do you think this may have implications for the legitimacy of international law or justice?
RM: Even if you put all of the world’s legal professionals together, they are a relatively small group because of the nature of the field. This relatively small group has however grown exponentially. In the last 20 years international law has developed significantly, for example in the areas of international environmental law and international trade law, and there are obviously more lawyers as specialists in these particular areas. As a result, there are also more opportunities for lawyers in governments, academia, as well as private practice, forming an overall larger group.
There are concerns about legitimacy which may be warranted. International law may often feel very remote for most people, and therefore those that are involved in it can sometimes seem like a quite remote part of an elitist project. This is not a good thing for the general understanding and appreciation of what international law is capable of doing within its limits.
STAIR: And do you think there has been any shift towards greater inclusion to and public understanding of IL?
RM: An interesting development of the last 15 years is the increased civil society embeddedness with the international law world, for example in driving momentum for new treaties or seeking to inform treaty monitoring mechanisms. For example, the Landmines Convention was very much a civil society driven initiative in the beginning. One could therefore claim that there is slightly more democratic involvement in international law.
Naturally, international law still is made by states and interpreted by courts, government lawyers, academics, and private practitioners. But on the other hand, there is more public understanding of international law. The US intervention in Iraq certainly had a negative impact on its reputation, but the incident also highlighted questions of what the role of international law is. IL also tends to turn up much more in domestic courts than before. Many domestic human rights lawyers in Europe are now to some degree international human rights lawyers, as they have to be familiar with the case law at international level and conduct cases at the European Court of Human Rights.
STAIR: In your work, do you see a disconnect between the way IL is practiced on the one hand, and the way it is studied by legal scholars on the other?
RM: Like with any academic fields, there will always be some divergence between study and practice, be it law or say, medicine. One thing I have noticed while working in Chatham House is that the academic international lawyers make great efforts to be connected with practitioners, be they from the government, NGOs or private firms. Anybody who wants to be credible needs to have diverse networks within their own field. In that sense a lot of good IL teaching is grounded in reality.
One of the strengths of IL academics is that they can step back from the day to day practice of law into the more theoretical sphere. While lawyers working for government do not always have much time for high level conceptual thinking, they also need to get the law right, and have defensible, well-grounded arguments. I think this keeps academics and practitioners in balance and provides constructive dynamism.
STAIR: Finally, during your work within the UK government and the UNHCR as a legal counsel, did you ever find any difficulties accommodating to political authorities and their goals? Were there ever situations where you had to think strategically about your advice?
RM: Sometimes as a lawyer when you are working in government or any political environment you might get the role of bringing people back to the rules, and that there may not be as much discretion as the policy-maker might want to have. However, this is your role as advocate legal adviser to be able to engage and explain how policy can be shaped in compliance with the law. In my experience policy makers are open to advice and you can have a constructive solutions worked on together.
These kinds of challenges are what makes work as a legal advisor in a government or with an international organisation rewarding. For me being involved in operational and policy decisions was very rewarding. International law is sometimes perceived as a restraint on policy but it also provides a framework for cooperation, and to be able to be involved in this positive side of it is what I enjoyed the most at the Foreign Office and also working at the UNHCR.
STAIR: Thank you very much for the interview, and the valuable insight into the policy and practitioners side of international law.